An appeal from an order passed under Section 340 of the Code of Criminal Procedure by a Single Bench of the High Court is not maintainable under Clause 15 of the Letters Patent.

Sanjib Banerjee, J.

The issue involved herein is simple, but the matter assumes a complex character in view of a seemingly well-settled order of a Division Bench of this court being found to have been rendered per incuriam by a subsequent Division Bench and the opinion of such subsequent Division Bench not being in consonance with a legal provision that it failed to notice. At any rate, the subsequent Division Bench's view has been rendered bad law by a recent pronouncement of the Supreme Court.

2. The opinion rendered by the more recent Division Bench of this court is inconsistent with the views expressed on such aspect by several other High Courts, including Delhi and Gujarat, in respect of a Central statute. However, even such position elsewhere in the country may not have prompted this Division Bench to dislodge the point of law decided by the more recent of the two previous Division Bench judgments of this court and, had it not been for a Supreme Court judgment delivered in March of this year, the matter may have been referred to a larger bench despite the immediate previous Division Bench view on such aspect appearing, on the face of it, to be erroneous and unsustainable.

3. To linger a further while on the prelude, it must never be lost sight of that in our hierarchical system of the judiciary governed by the rule of law, judicial discipline is of greater importance than jurisprudential correctness. Certainty and finality are the hallmarks of a mature judicial system and, just as the principle of res judicata has more to do with finality and conclusivity than correctness, the doctrine of stare decisis commands that a settled position of law should scarcely be disturbed.

4. The issue as to the maintainability of an appeal from an order passed by a Single Bench of this court on a petition under Section 340 of the Code of Criminal Procedure, 1973 has been raised by the court. The respondents have gleefully supported such proposition and cited appropriate judgments in such regard.

5. Before referring to the contentions raised by the appellant or noticing the several judgments that the parties have brought to bear on the subject, the primary provisions need to be seen. Section 341 of the present Code of 1973 provides for appeals arising out of orders passed under Section 340 thereof. Since Section 341 of the Code of 1973 provides for the right of appeal against orders passed under Section 340 thereof other than by a High Court and the prevailing view in this court is that the right of an intra-court appeal in this High Court is found in Clause 15 of the Letters Patent, 1865, such appellate provisions are set out:

"341. Appeal. - (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub- section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision."

"Clause 15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. - And We do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional j